R. v. Beseiso, 2025 ONSC 118

Court File No.: CR-19-151-0000
Date: 2025-01-07
Superior Court of Justice – Ontario
Re: R. v. Alex Beseiso
Before: Robert B. Reid
Counsel: S. Kim and K. Dean, for the Crown
Accused self-represented
Heard: October 29 and December 16 & 17, 2024

Decision on s. 11(b) Charter Motion

Introduction

[1] Mr. Beseiso stands charged with six counts: three contrary to s. 423.1(3) and three contrary to s. 264(3) of the Criminal Code of Canada, namely intimidation of justice system participants and criminal harassment respectively.

[2] Mr. Beseiso is self-represented and is presently in custody.

[3] He has made an application for a stay of his proceedings based on a breach of s. 11(b) of the Charter. That application is contained in a handwritten document and is based on the passage of over 30 months from the date of his arrest.

[4] An earlier application alleging a breach of s. 11(b) was made by Mr. Beseiso when he was not in custody. That application was dismissed summarily by Sloan J. on May 19, 2021. Mr. Beseiso was not present on that occasion and therefore did not make submissions.

[5] In neither application were transcripts made available.

[6] On this application, Mr. Beseiso wished to have transcripts provided to show that he made every effort to expedite the case. He submitted that he has been unable to secure transcripts because of his custodial situation and that the court or the Crown should make arrangements for the transcripts to be produced. There is no explanation why transcripts were not provided at the time of the earlier application. In addition, Mr. Beseiso’s current application sought a copy of the “Jordan framework”. In court, he identified that he needed a copy of the decision in R. v. Jordan, 2016 SCC 27 and he was then provided with a copy by the Crown.

[7] Normally, the securing of transcripts is not the responsibility of the court. Rather than delay or dismiss the application due to the lack of transcripts, I received submissions in their absence. I reviewed and accepted as fact the content of the endorsements made on the indictment. I assumed for the purpose of this application that Mr. Beseiso made reasonable efforts to move the matter forward to a conclusion since his return to Canada on November 7, 2023, and that there was no waiver or defence delay during that time to date. Based on those facts and that assumption, I determined that transcripts were not required to make a just decision.

[8] In response to the Crown’s submissions that defence delay occurred by virtue of Mr. Beseiso’s failure to attend at the trial scheduled for July 12, 2021, Mr. Beseiso asked to give oral evidence about the circumstances surrounding his failure to attend. Given his status as a self-represented accused, and despite the lack of reference in the application to his reasons for non-attendance, I permitted that procedure, subject to cross-examination by the Crown.

Background Facts

[9] I accept the following as facts, which are uncontested:

• Mr. Beseiso was arrested on November 21, 2018. As a result, the presumed Jordan date was May 21, 2021.
• A preliminary hearing took place in the Ontario Court of Justice over the course of three days which ended with a committal on October 11, 2019.
• A trial date had been set to occur in this court during the three-week sittings commencing October 5, 2020.
• Mr. Beseiso brought a certiorari application to the Superior Court challenging the propriety of his committal for trial. That matter was dismissed, and he pursued an appeal to the Ontario Court of Appeal. In turn, the Court of Appeal dismissed the appeal by order dated October 29, 2020.
• The October 2020 trial date was vacated pending the decision of the Court of Appeal.
• By written application dated October 29, 2020, made immediately after the release of the Court of Appeal decision, Mr. Beseiso sought a three-month adjournment in setting a new trial date with a waiver of his s. 11(b) rights for those three months. On November 9, 2020, Durno J. granted the requested adjournment and remanded Mr. Beseiso to February 1, 2021 to set dates for pretrial motions and for trial and noted that s. 11(b) rights were waived.
• On January 4, 2021, at a judicial pretrial held at Mr. Beseiso’s request and in his presence, four days were set for pretrial motions to be heard commencing June 28, 2021, with the trial to take place commencing July 12, 2021, for an estimated seven days.
• On March 23, 2021, at the continuation of the judicial pretrial and in his presence, Mr. Beseiso was remanded by Durno J. to April 9, 2021, for the hearing of a Crown motion to appoint counsel to cross-examine the complainants. May 19, 2021, was set to hear the Crown’s application to have the Charter motions dismissed summarily, as well as for hearing of Mr. Beseiso’s application to be tried by a court composed of judge and jury.
• Mr. Beseiso left Canada in May 2021. He did not attend for the May 19 hearing, and the Charter motions were dismissed summarily by Sloan J. on that date. The pretrial motion dates commencing June 28, 2021 were vacated. A bench warrant was issued, to be executed with discretion, pending the trial date of July 12, 2021.
• Mr. Beseiso did not attend for trial readiness court on June 18, 2021.
• Mr. Beseiso did not attend for trial on July 12, 2021. The bench warrant was to be executed.
• Mr. Beseiso was arrested on his return to Canada on November 7, 2023.
• On June 28, 2024, new pretrial motion dates and a new trial date were set with the former to commence October 28, 2024, and the latter to take place over an estimated four weeks commencing March 17, 2025.

Legal Framework and Analysis

[10] As to the law, Mr. Beseiso submitted that pursuant to R. v. Jordan, 2016 SCC 27, the requirement is simply that when 30 months passes from the date of the original arrest, the onus shifts to the Crown to justify the delay, otherwise there will have been a breach of s. 11(b). He submitted that the Crown has not satisfied its onus.

[11] The Jordan framework is more nuanced than Mr. Beseiso submitted. It is applied by looking at the total delay from the date of arrest less any delay that was either explicitly or implicitly waived by the accused or caused by the accused. When that calculation is made, if the net delay is more than 30 months, the onus then shifts to the Crown to justify the delay either by demonstrating exceptional circumstances or that the case was so complex that more time was required.

[12] I agree with Mr. Beseiso’s submission that there are two time periods that may be relevant in this application. The first is from the date of arrest to the end of the trial which was set for seven days commencing July 12, 2021, and the second is from July 2021 to the present.

The period prior to July 2021

[13] Sloan J. made an order on May 19, 2021 dismissing the s. 11(b) application in the absence of the accused. Mr. Beseiso submitted that a different order would have been made if he had been present to supplement his written application with oral representations. However, I find that the Sloan J. order makes sense even without those representations, based on the following analysis.

[14] If the trial had proceeded as scheduled in October 2020, the delay would have been about 23 months, well within the Jordan guidelines. The trial did not proceed only because Mr. Beseiso chose to apply for certiorari after his committal and then unsuccessfully appealed the dismissal of that application. He had every right to take those steps, whether successful or not. However, it is inappropriate to attribute delay from October 20, 2020 when the trial date was vacated to anyone other than the defence. The “Jordan clock” was reset from that point.

[15] As well, and notwithstanding my conclusion about the effect of vacating the October 2020 trial date, the clear waiver from October 29, 2020 to February 1, 2021 (three months) meant that 30 months from the date of arrest plus the waiver would not have elapsed until after the conclusion of the trial scheduled to begin July 12, 2021. As with the October 2020 trial date, if the trial had proceeded in July 2021, there would have been no s. 11(b) issue.

[16] In evidence, Mr. Beseiso testified that he left Canada for Jordan in May 2021, with the expectation that he would be able to attend the pretrial motions and trial remotely. He said he had no intention of failing to appear for his trial, and he did not abscond. He said he was not provided with a Zoom link for the May 19 motions date or the trial date, and that despite multiple efforts to contact the trial office in Milton by telephone and email to receive a link, he was unable to do so.

[17] I note that in his email correspondence of May 13, June 14 and June 28 referred to below, Mr. Beseiso did not refer to any lack of receipt of a Zoom link for the motions or the trial. I also note that there is no evidence that the trial was scheduled to be heard remotely. That appears to have been an assumption made by Mr. Beseiso.

[18] In any event, based on my comments above, no oral submissions that Mr. Beseiso might have made on May 19, 2021 would have changed the calculation or the conclusion reached by Sloan J., and as such, whether Mr. Beseiso was sent a Zoom link for the May 19 date is irrelevant to the order made.

[19] To review: the initial calculation, even without the benefit of transcripts, discloses that the net delay would have been significantly less than 30 months if the trial had taken place in October 2020. Likewise, and even without regard to the October 2020 trial date, the trial would have been within the Jordan timeframe if it had proceeded in July 2021. My view to that effect is consistent with the May 19, 2021 order of Sloan J. when he dismissed the application.

The period following July 2021

[20] The ruling of Sloan J. does not end the 11(b) issue, because an application can be renewed based on the continuing passage of time, and therefore this application is not res judicata, meaning it has not already been decided.

[21] The key remaining issue is therefore whether the failure to attend trial in July 2021 followed by the time until Mr. Beseiso was arrested in November 2023 properly can be characterized as defence delay. If the clock is reset as of November 7, 2023 when Mr. Beseiso returned to Canada and was arrested pursuant to a bench warrant, then the scheduled March 2025 trial will occur well within the Jordan guidelines.

[22] Mr. Beseiso submits that none of the delay from July 2021 should be attributed to him.

[23] In testimony, Mr. Beseiso acknowledged an email exchange with the Crown and the trial office on May 13, 2021 (Exhibit 5A) in which he indicates that he would not attend court on May 19. The Crown responded by email the same day, cautioning against non-attendance, and suggested he seek legal advice on the point.

[24] Mr. Beseiso also acknowledged sending an email to the Crown and trial office dated June 14, 2021 (Exhibit 5B). In it, he asks that the email be forwarded to the presiding judge for the “upcoming trial”. He indicates, in part, that: “I have concluded based on objective reasons that the court you represent is an oppressive unjust court, incapable of making a just ruling.”

[25] After summarizing his grievances against the court, he states:

Based on the above-mentioned. I have concluded, it is not in my interest to appear before your court. I have taken temporary safe refuge in my cousin’s land, the Hashimite king of Jordan. Until such time as me and my clan, are able to out power the godless state of Israel. And me and my clan can return home, to Gaza…. As such I no longer abide by Canadian law, nor have any allegiance to the queen of england. And will no longer appear to a Canadian court. If you like; please pursue international remedies, to have me answer to your court court [sic]. The kingdom and my clans many national allies; will protect me in such a situation.

[26] Notwithstanding the position taken in Mr. Beseiso’s email, the Crown forwarded an email on June 28, 2021 (Exhibit 5C) attached to which was an electronic document brief “in anticipation of the trial proceedings scheduled to begin on July 12, 2021”. By responding email sent the same day, Mr. Beseiso stated: “Please be advised that i have now added you to my spam folder, any further emails form [sic] you will not be received.”

[27] The Crown’s email of June 28 confirms the upcoming trial date which had been set in Mr. Beseiso’s presence. Mr. Beseiso’s email indicates his intention not to appear for trial. He was clearly out of the country and there is no evidence that a virtual trial was either offered or scheduled.

[28] Mr. Beseiso submits that even in the face of those emails from him and his non-appearance, the Crown had an obligation to pursue the matter within a reasonable time and failed to do so. Further, he submits that his own mental state at the time was fluctuating between right and wrong, positive and negative, and that the emails were sent when he was in a negative state. His sworn testimony in court on this application should be sufficient to permit the court, on a balance of probability, to be satisfied that he did not intend to abscond, and therefore that the delay from July 2021 until November 7, 2023 was not defence delay.

[29] Mr. Beseiso also testified that he prepared and filed a motion seeking to remedy his non-appearance but received no acknowledgement from the court. No copy of the motion was provided, nor did it appear in any of the filings made by the Crown. In his application, Mr. Beseiso submits that the failure of the court to respond was an abuse of process. However, in submissions, Mr. Beseiso admitted that, given his comments in the email to the trial office and to the Crown, bad faith was not a necessary conclusion.

[30] I find that the content of Mr. Beseiso’s testimony alone, and without any evidence of the motion being filed, does not support a conclusion that any bad faith has been demonstrated.

[31] The simple fact is that Mr. Beseiso did not attend for trial. As a result, it could not be conducted in July 2021 as scheduled.

[32] It is not relevant to this motion to determine whether Mr. Beseiso committed a criminal act in failing to attend, or to assess the bona fides of his reasons for non-attendance. The only question is whether responsibility for the delay due to the trial not proceeding as scheduled in July 2021 lays with the defence, the Crown, or the court.

[33] I find that the failure to proceed with the trial was not due to any action or inaction of the Crown or the court. Mr. Beseiso’s reasons for being out of the country in July 2021 are his own. It was his choice not to attend in court in Milton for the trial as scheduled. The time from July 2021 until the return of Mr. Beseiso to Canada in November 2023 can only be considered as defence delay.

[34] As a result, and for the foregoing reasons, the s. 11(b) application is dismissed.

Robert B. Reid
Date: January 7, 2025